Diego Andres Arateco Munoz, a Colombian citizen, entered the United States in 2008 and later faced removal proceedings. In 2021, an Immigration Judge denied his application for cancellation of removal but found he was a person of good moral character and entitled to discretionary relief, though he failed to show exceptional hardship to his mother. Following this, Munoz applied for post-conclusion voluntary departure, which the IJ initially denied based on his status as an 'arriving alien.' The Board of Immigration Appeals remanded the case, clarifying that 'arriving aliens' are eligible for voluntary departure and instructing the IJ to reconsider eligibility and discretion. On remand, the IJ denied voluntary departure, citing two new convictions for driving while intoxicated that occurred after the initial 2021 application. The BIA affirmed this denial, and Munoz petitioned the Sixth Circuit for review.
The Sixth Circuit addressed three primary arguments. First, regarding the statutory interpretation of 8 U.S.C. § 1229c(b)(1)(B), the court analyzed the phrase 'is, and has been, a person of good moral character.' The court reasoned that Congress's use of the present tense 'is' alongside the present-perfect 'has been' indicated an intent to freeze the inquiry at the date of application. Instead, the court held that 'is' requires the noncitizen to be of good moral character at the time of adjudication. The court distinguished this from other statutes that only used 'has been' or 'was and is,' concluding that the specific language here sets a floor of five years but does not prohibit consideration of post-application conduct. Second, the court addressed the scope of the BIA's remand. The petitioner argued the remand was limited to correcting the 'arriving alien' legal error. The court found the BIA's order explicitly allowed the IJ to consider 'eligibility for voluntary departure' and 'whether the respondent should be granted voluntary departure in the exercise of discretion,' which encompassed the new convictions. Third, the court rejected the claim of fundamental unfairness. The petitioner argued it was unfair to consider new convictions after the IJ previously found him of good moral character. The court held that because the IJ was legally permitted to consider the new conduct, the proceedings were not unfair. Additionally, the court found that the delay in the BIA's decision did not prejudice the petitioner, noting he was not in custody for most of the appeal and could have requested the case remain on the active docket.
This decision clarifies that immigration judges may consider criminal convictions occurring between the application for voluntary departure and the final decision when assessing good moral character. It limits the ability of petitioners to argue that a remand on a specific legal issue precludes a re-evaluation of discretionary factors based on new conduct. The ruling also establishes that delays in administrative proceedings do not automatically constitute fundamental unfairness unless they result in specific prejudice that could not be avoided by the petitioner.
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